No Emergency

I had not planned to post this evening. And, this post deals with a topic that is clearly outside of my area of practice. However, Trump’s claim that the International Emergency Economic Powers Act of 1977, 50 U.S.C. § 1701 et seq., gives him the authority to order U.S. companies to cease doing business in China is so plainly specious that even a first-year law student could debunk it. But, since this is Saturday night and no first-year law students are readily available, I figured that I had to step in.

Section 1701 provides as follows:

Section 1701. Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities

(a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.

(b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat.

Subsection (b) makes it clear that the alleged threat must be based upon a “new declaration of national emergency which must be with respect to such threat.” Presumably, Trump’s Tweet of yesterday does not constitute a “declaration of national emergency.” This conclusion is fortified by 50 U.S.C. § 1703 which requires:

  • That “[t]he President, in every possible instance, shall consult with the Congress before exercising any of the authorities granted by this chapter and shall consult regularly with the Congress so long as such authorities are exercised.” 50 U.S.C. § 1703(a).
  • That “[w]henever the President exercises any of the authorities granted by this chapter, he shall immediately transmit to the Congress a report specifying— (1) the circumstances which necessitate such exercise of authority; (2) why the President believes those circumstances constitute an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States; (3) the authorities to be exercised and the actions to be taken in the exercise of those authorities to deal with those circumstances; (4) why the President believes such actions are necessary to deal with those circumstances; and (5) any foreign countries with respect to which such actions are to be taken and why such actions are to be taken with respect to those countries.” 50 U.S.C. § 1703(b).

50 U.S.C. § 1703(c) requires periodic follow-up reports every six months.

Needless to say, Trump did not consult with Congress prior to the Tweet. Further, he has not even made a pretense that he could outline the matters required to be set forth in the report that subsection (b) requires to be submitted to Congress.

There’s more, however. Subsection (d) of Section 1703 provides that the requirements of Section 1703 “are supplemental to those contained in title IV of the National Emergencies Act.” 50 U.S.C. § 1622 provides methods for terminating a declared national emergency, including “a joint resolution terminating the emergency.” 50 U.S.C. § 1622(a)(1). And, subsection (b) of Section 1622 provides that:

Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.

Subsection (c) sets forth the procedures to be followed with respect to a joint Congressional resolution. Subsection (c)(3) provides that:

Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

Let me translate all of this into plain English: Trump has to formally declare a national emergency. If he does, he has to report it to both houses of Congress. Either house can pass a resolution to terminate the national emergency. Let’s assume that the House of Representatives passes such a resolution. That resolution has to be taken up by the Senate within eighteen calendar days after it is transmitted by the House of Representatives unless the entire Senate, by a majority vote, elects to delay consideration of the resolution. In other words, Mitch McConnell cannot unilaterally block Senate consideration of the resolution.

In the first six months of 2019, the U.S. exported $52 Billion in goods to China and imported a little over $219 Billion. See here. China is the largest trading partner of the U.S. Even Trump is not stupid and/or crazy enough to destroy that relationship. And, even if I’m wrong and he is that stupid and/or crazy, there are at least 51 Senators who would stop him.

2 thoughts on “No Emergency”

  1. It’s just insane that the president was handed such power by Congress in the first place. At a minimum, it should only require a resolution by one house of Congress to end a state of emergency.

  2. What’s interesting is that the focus of much of the commentary about this is whether he has the authority to declare an emergency. I have assumed, arguendo, that he has the requisite authority but that, for all practical purposes, he will not be able to exercise the authority.

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